Grayson v. St. Louis Transit Co.

| Mo. Ct. App. | Feb 17, 1903

BLAND, P. J.

1. The objection made to the introduction of any evidence on either count of the petition was in the nature of a demurrer to the petition on the ground that it failed to state any cause- of action. The first count would authorize a recovery of damages, in an action other than slander, for mental anguish or shame caused by words addressed to the plaintiff unaccompanied by any bodily pain or suffering.

In Farber v. Mo. Pac. R’y Co., 116 Mo. l. c. 91, it is said the relation of a carrier and passenger “places the carrier under the obligation to carry the passenger safely and properly and treat him respectfully; and holds him responsible for the conduct of his servants, to whom he intrusts'the performance of his duty. He is bound to protect his passengers from violence and insults by strangers and co-passengers, and a fortiori against the violence and insults of his own servants.”

The Farber case was an action for personal injuries to the plaintiff caused by his being forcibly ejected from a train by a brakeman.

In Eads v. The Metropolitan Street R’y Co., 43 Mo. App. (K. C.) 536, in an action for damages caused by the forcible ejectment of plaintiff from a street car by the conductor, substantially the same language is used as in the Farber ease.

Numerous authorities might be cited in support of the doctrine that a carrier of passengers is bound to treat its passengers with decorum and respect and to protect them from the insults and assaults of strangers and co-passengers, if it is necessary, but this duty’ is so obvious ¡and necessary that it needs no judicial authority to sanction it. It is a general rule of law that if damages ensue for a violation of duty, the party injured .may have an action to recover his damages, but the law does not give damages for every injury, nor does every wrong subject the wrongdoer to a pecuniary penalty.

In Trigg v. The St. L., K. C. & N. R’y Co., 74 Mo. l. c. 153, the court said: ‘ ‘ The general rule is that ‘ pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, -insult or inhumanity;’ ” that is, pain of mind will be the subject of damages when caused by bodily injury itself, and also when the bodily injury does not in itself cause pain of mind, but was inflicted under circumstances which manifested malice or inhumanity or was accompanied by insult. "We have been cited to no’ case in this State, nor have we been able to find one, where it has been held that mere words unaccompanied by any bodily injury, not incident to such injury, was held the subject of dam.ages, except in actions of libel and slander; on the contrary it has been repeatedly held that a recovery of damages in such circumstances can not be had. Spohn v. Mo. Pac. R’y Co., 116 Mo. l. c. 632, 633; Connell v. The Western Union Tel. Co., 116 Mo. l. c. 46-7; Deming v. C., R. I. & P. R’y Co., 80 Mo. App. (K. C.) 152; State v. Workman, 75 Mo. App. (St. L.) 454.

We conclude that the first count of the petition does not state a cause of action and the objection to the introduction of any testimony on that count should have been sustained.

2. The second count of the petition is defective in that it fails to allege that the conductor had authority from defendant, as its agent, to cause the arrest of the plaintiff, but we do not think that it is- fatally defective. for this reason. The conductor had charge of the ear and full control of it for the time and represented the defendant in the fullest sense, as to tafiy and every matter connected with its management and control, -and it being his duty to protect passengers from insult and injury it can not be said, as a matter of law, that in the discharge of this duty he had no authority to call an officer and cause the arrest of a passenger when necessary to preserve the peace on board the car and to protect his passengers from insults and injury. On the contrary it seems to us that if a passenger should be guilty of a flagrant breach of. the peace, to the annoyance and disturbance of his co-passengers, the conductor would have the right and it would be his duty to cause his arrest bj^ an officer, if one was by to make it. It is true he is not a conservator of the peace, yet it is his bounden duty to preserve the peace on his car and to prevent insult and injury to the passengers and if, to discharge this duty, it should becohie necessary to call a policeman we are satisfied that lie should do so, and that to do so is within the scope of his employment, and com clnde that the second count is sufficient after verdict.

The evidence is that under a rule of the company the conductor did have authority to call a policeman— to call a policeman generally signifies that an arrest is to be made — and we think that both from necessity and under the company’s rules it was within the scope of his authority to cause the arrest of any passenger when necessary to preserve the peace and to protect other passengers. After the relation of passenger ceased, of course the authority of the conductor to cause his arrest ceased and an arrest caused by him after the passenger had left the car would not be the act of the company but the act of the conductor for which he and not the company would be liable.

The evidence further is that while plaintiff was in the act of descending from the car for the purpose of taking another car on Laclede avenue, he was pushed off by the conductor, who at the same moment said to the policeman standing by, ‘ ‘ Arrest that man, ’ ’ and that plaintiff was followed by the policeman and arrested in the street. A police officer, of the city of St. Louis, who has reasonable and probable cause to suspect the person arrested guilty of the commission of an offense, may lawfully arrest the offender without warrant [State v. Hancock, 73 Mo. App. (St. L.) 19] and may therefore arrest upon the information of a third party, if the information is such as to furnish reasonable grounds and probable cause to believe that the person accused has committed an offense. While the evidence shows that the conductor made no formal charge against plaintiff upon which the officer made the arrest, it does show that the officer was.present when the altercation took place between the plaintiff and the conductor on the rear plat'form of the car and .that he followed the plaintiff into the street and made the arrest at the request of the conductor. The plaintiff had not quit the car when the conductor ordered Ms arrest, but was in tbe act of alighting from the car, and his testimony is that the order for his arrest wias simultaneous with his being pushed from the car by the conductor.

The order for his arrest was before he quit the car and while he was yet under the protection of the conductor and at a time when it was the duty of that employee to treat him with respect and to protect him from injury and insult. The order for the arrest wias therefore given by the conductor while he was about the business of the company and was within the scope of his authority, though in abuse of it. After his arrest the plaintiff was taken a prisoner to a police station by the officer who made the arrest. To regiain his liberty he was compelled to enter into a recognizance for his appearance on the following day before a police justice to answer the charge of having disturbed the peace. In obedience to his recognizance he did appear, but no one appeared to prosecute him. After hearing his statement and the evidence of the police officer, who arrested him, the justice discharged him, and here the chapter of humiliation ended.

The evidence tends to show the commission of a malicious tort against the plaintiff by the appellant through its agent, the conductor, acting within the scope of his employment. For such an act a corporation is liable to the same extent as an individual. Travers v. Kansas Pacific R’y, 63 Mo. 421" court="Mo." date_filed="1876-10-15" href="https://app.midpage.ai/document/travers-v-kansas-pacific-railway-8005445?utm_source=webapp" opinion_id="8005445">63 Mo. 421; Hicks v. The Hannibal & St. J. R. R. Co., 68 Mo. 329" court="Mo." date_filed="1878-10-15" href="https://app.midpage.ai/document/hicks-v-hannibal--st-joseph-railroad-8006075?utm_source=webapp" opinion_id="8006075">68 Mo. 329; Haehl v. The Wabash R’y Co., 119 Mo. l. c. 342; Canfield v. The C., R. I. & P. R’y Co., 59 Mo. App. 354" court="Mo. Ct. App." date_filed="1894-11-05" href="https://app.midpage.ai/document/canfield-v-chicago-rock-island--pacific-railway-co-6617818?utm_source=webapp" opinion_id="6617818">59 Mo. App. 354; McGinniss v. Mo. Pac. R’y. Co., 21 Mo. App. 399" court="Mo. Ct. App." date_filed="1886-04-05" href="https://app.midpage.ai/document/mcginnis-v-missouri-pacific-railway-co-6615074?utm_source=webapp" opinion_id="6615074">21 Mo. App. 399; Atlanta and West Point R. R. v. Condor, 75 Ga. 51" court="Ga." date_filed="1885-12-15" href="https://app.midpage.ai/document/atlanta--west-point-railroad-v-condor-5561829?utm_source=webapp" opinion_id="5561829">75 Ga. 51; Quinn v. South Carolina R. Co., 1 L. R A. 682; L. & N. R. R. v. Whitman, 79 Ala. 328" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-whitman-6512386?utm_source=webapp" opinion_id="6512386">79 Ala. 328; Sachrowitz v. A. T. & S. F. R. R. Co., 37 Kan. 212" court="Kan." date_filed="1887-07-15" href="https://app.midpage.ai/document/sachrowitz-v-atchison-topeka--santa-fé-railroad-7886990?utm_source=webapp" opinion_id="7886990">37 Kas. 212; Forsee v. Ala. G. S. R. R. Co., 63 Miss. 66" court="Miss." date_filed="1885-10-15" href="https://app.midpage.ai/document/forsee-v-alabama-great-southern-railroad-7986264?utm_source=webapp" opinion_id="7986264">63 Miss. 66.

3. For the reason that the first count of the petition fails to state any cause of action the judgment on that count is reversed.

4. The recovery of $1,450, as actual damages on the second count is, in the opinion of the court, excessive. Five hundred dollars would be adequate compensation for all the injury sustained. Wherefore it is considered that unless the plaintiff, within ten days, files with the clerk of this court his remittitur of $950, the judgment will be reversed and the cause remanded, If the remittitur be filed within the time herein allowed, the judgment on the second count will stand affirmed for $500 actual damages and $375 punitive damages.

Judge Goode concurs; Judge Reyburn not sitting.